Praise for Failed Evidence

"...A masterful expose of both the flaws in our criminal justice system and the reasons many police and prosecutors are unwilling to correct them."
Professor Christopher Slobogin, Vanderbilt University Law School

This is a significant fact. But two other things in the report got less notice and deserve more.

First, for most people, “exoneration” is synonymous with “DNA exoneration.” This is how the world looks, whether on television (think ofCSIand its many clones) or in any news source. But this view doesn’t reflect the real world. As the report points out, only about 21 percent of the exonerations in 2013 involved DNA (p. 6). Despite the impression one gets from the media, this has always been the case; of all of the exonerations since 1989, 72 percent were not based on DNA. And that difference seems to be increasing. In both 2012 and 2013, non-DNA exonerations increased significantly, while DNA exonerations decreased (p. 12).

The other fact that many in the media did not notice: for the last two years, the percentage of all exoneration cases resolved with the cooperation of the police or prosecutors has risen dramatically. In 2012, almost half of all the cases featured cooperation of the police or prosecutors in re-examining cases, leading to exoneration; the average percentage in all the years before (1989-2011) did not reach 30 percent. The trend continued this year, with almost police or prosecutors cooperating in almost 40 percent of all exonerations. (A few media organizations, such as Fox News, NPR, and the Christian Science Monitor, featured this fact in their headlines and/or stories.)

This is a very welcome and important development. While some exonerations have always come about with law enforcement cooperation, this was not the trend. Despite assurances from Scott Burns, executive director of the National District Attorneys Association that “we always did that, we just didn’t” have a name for the process (see his quote here), the data on the last two years do show a greater willingness to re-examine old cases than in years past. According to Samuel Gross of the University of Michigan Law School, who edits the Registry, “the sharp, cold shower that DNA gave to the criminal justice system has made us realize that we have to re-examine” closed cases whether with DNA or not. That idea appears to be sinking on a much wider basis. And that is all to the good.

The International Association of Chiefs of Police (IACP) is one of the leading organizations for law enforcement professionals in the U.S. and around the world. I regularly turn to their model policy and training documents when working on those issues for police agencies. So it’s a big deal to see their new report, prepared in conjunction with their partner, the U.S. Department of Justice Office of Justice Programs, announcing that their new effort in which they will play a leading role in fixing the problems in police investigation that cause wrongful convictions.

The report, titled, “National Summit on Wrongful Convictions: Building a Systemic Approach to Prevent Wrongful Convictions,” takes a full view of the issues that must be addressed to avoid convicting the wrong people, and announces a series of recommendations designed to bring the goal within reach. It is based on work at a summit of people from IACP, DOJ, and a host of experts. In a preliminary statement in the report, the President of the IACP and the Assistant Attorney General for the Office of Justice Programs, outlined how the report came to be and what it does.

This event gathered 75 subject matter experts from all key disciplines to address and examine the causes of and solutions to wrongful convictions across the entire spectrum of the justice system. Summit participants worked diligently during this one-day intensive event to craft 30 focused policy recommendations that guide the way to our collective mission to continually improve the criminal justice system. The summit focused on four critical areas: (1) making rightful arrests, (2) correcting wrongful arrests, (3) leveraging technology and forensic science, and (4) re-examining closed cases. The 30 resulting recommendations directly address these areas and lay a critical foundation for required changes in investigative protocols, policies, training, supervision, and assessment.

The report is absolutely essential reading for anyone interested in wrongful convictions and what can be done to correct them. Readers of my book Failed Evidence will also recognize that the emergence of this consensus at the top of the law enforcement profession is exactly what I have called for: “Police and Prosecutors Must Lead the Effort” (pp. 158-159).

The use of DNA identification as a forensic tool, beginning in 1989, changed the way that we think about guilt, innocence, and traditional police investigation. It isn’t just the 311 wrongful convictions that DNA identification has confirmed; it’s the far more numerous cases in which DNA has determined guilt — sometimes in cases years or decades old.

Now DNA identification is about to change: it will become even more powerful than it is now. A new way of processing and interpreting DNA has arrived that will make our current DNA techniques look weak by comparison.

On Friday, Nov. 8, I attended an incredibly interesting talk by Dr. Ria David. Dr. David is one of the co-founders of Cybergenetics, a company based in Pittsburgh. Cybergenetics has perfected computer-based techniques and technologies that will change the way that DNA is analyzed. With Cybergenetics’ TrueAllele (R) system, the analysis relies the power of computers instead of interpretation done by humans. The talk was sponsored by the Center for Women’s Entrepreneurship (CWE) at Chatham University. (Disclosure: my wife runs CWE; my wife and I know Dr. David and her Cybergenetics co-founder, Dr. Mark Perlin, but neither my wife nor I have any personal or financial ties of any kind to Cybergenetics.)

Most of us know that a DNA sample allows forensic scientists to say things like “the odds that this sample came from anyone other than the defendant are fifty million to one.” Pretty powerful stuff — until you learn that Cybergenetics’ systems will allow prosecutors to offer juries odds of not tens of millions to one, but trillions or even quadrillions to one. In addition, Cybergenetics will allow analysts to pull apart mixtures of DNA from different people, which is common at crime scenes, and which current DNA technology often can’t handle. Readers of my bookFailed Evidence: Why Law Enforcement Resists Sciencecan get a little more information in Chapter 7, pp. 186-190; you can get the book here.

Cybergenetics’ DNA system has found ready acceptance in the United Kingdom, but the process has been slower in the U.S. There has been considerable resistance — something readers of Failed Evidence are quite familiar with — particularly at the FBI, which governs current DNA protocols and use.

There is much more to how the Cybergenetics’ TrueAllele system works, and what it can do; I’d urge readers to take a good look at Cybergenetics web site, which gives details on what they do, and the many criminal cases and mass disaster identification cases (including the identification of remains at the World Trade Center site). Once law enforcement sees what this new method of using DNA can do, and once resistance to change is overcome, DNA will be able to identify many more guilty criminals, as well as exonerate many more of the wrongfully convicted, and it will do so with more certainty that we ever thought possible.

In today’s world, we think of DNA matching as the gold standard of identification: a scientifically precise method of matching human tissue or fluids left at a crime scene to a particular individual. But in an op-ed article last week, High-Tech, High-Risk Forensics, published in the New York Times, Cal Hastings professor of law Osagie Obasogie reminds us that even DNA identification isn’t foolproof. It’s an excellent point and one worth remembering. But then he stumbles over the details of DNA identification, labeling it high risk, because many people might have the same DNA profiles. Risk is always present, but is the risk of getting DNA identifications high because many people might have the same DNA profile? No.

Professor Obasogie tells us the story of a man arrested for a murder near San Jose, California, when his DNA was found on the victim’s body. Only after the man was arrested and jailed did his alibi surface: at the time of the murder, he was a patient at a hospital, suffering from severe intoxication, and there were voluminous records to prove it. He was freed after five months, and prosecutors now think the most likely explanation is that paramedics who transported the man to the hospital were the same ones called to the crime scene later that night. The DNA was likely transferred to the victim from the paramedics’ clothing or equipment. Professor Obasogie decries “the certainty with which prosecutors charged Mr. Anderson with murder,” because it “highlights the very real injustices that can occur when we place too much faith in DNA forensic technologies.” This is hard to argue with; for those who can remember this far back, it recalls lawyer Barry Scheck cross-examining Dennis Fung in the O.J. Simpson murder trial over the sloppy collection of DNA and other evidence. Scheck and other lawyers argued that the DNA that seemed to implicate Simpson just couldn’t be trusted; “garbage in, garbage out.” Professor Obasogie is not saying that the paramedics did anything wrong or were sloppy in any conventional sense; rather he’s arguing (correctly) that contamination can happen even when we’re not aware of the possibility. Thus caution is always advisable, even with DNA.

But then Professor Obasogie begins to argue that there are deeper problems with DNA identification than just contamination.

Consider the frequent claim that it is highly unlikely, if not impossible, for two DNA profiles to match by coincidence. A 2005 audit of Arizona’s DNA database showed that, out of some 65,000 profiles, nearly 150 pairs matched at a level typically considered high enough to identify and prosecute suspects. Yet these profiles were clearly from different people.

Professor David H. Kaye of Penn State Dickinson School of Law has pointed out the problem with this argument on his blog Forensic Science, Statistics & the Law. In a blog post on July 26, Professor Kaye explains why Professor Obasogie is wrong on this point. In his words:

The 150 or so matches were, in fact, mismatches. That is, they were partial matches that actually excluded every “matching” pair. Only if an analyst improperly ignored the nonmatching parts of the profiles or if these did not appear in a crime-scene sample could they be reported to match.

There is much more to Professor Kaye’s thorough and lucid explanation. If you are interested in a real understanding of how DNA actually works, I strongly recommend Professor Kaye’s post.

The U.S. Department of Justice (DOJ), in partnership with the Innocence Project and the National Association of Criminal Defense Lawyers (NACDL), will review 2,000 cases in which microscopic hair analysis of crime scene evidence was conducted by the FBI Laboratory. The review, prompted by the DNA-based exoneration of several men convicted on the basis of hair microscopy, will focus on “specific cases in which FBI Laboratory reports and testimony included statements that were scientifically invalid.” The Innocence Project’s announcement of the review is here; a representative news article is here.

In a move that shows just how seriously the DOJ is taking this review, it has done something unheard of:

Because of the importance attached to these cases, the DOJ has agreed, for the first time in its history, not to raise procedural objections, such as statute of limitations and procedural default claims, in response to the petitions of criminal defendants seeking to have their convictions overturned because of faulty FBI microscopic hair comparison laboratory reports and/or testimony.

Translation: DOJ is not going to fight this review in any of these cases; they’re going to be part of it.

It’s hard to describe the magnitude of the shift in outlook this represents. Usually, as readers of Failed Evidence know, law enforcement (and I include DOJ in that phrase) resists science-based review and testing; that’s the thrust of the book. I am happy to say that this is refreshingly different. According to Peter Neufeld, Co-Director of the Innocence Project, “[t]he government’s willingness to admit error and accept its duty to correct those errors in an extraordinarily large number of cases is truly unprecedented. It signals a new era in this country that values science and recognizes that truth and justice should triumph over procedural obstacles.”

Of course, this review will not affect cases in which hair analysis was handled by state crime labs. But here’s hoping they will take this as an example, as the Grits for Breakfast blog argues ought to be done in Texas.

For a sense of the damage that sloppy hair analysis and testimony about it has done in prior cases, listen to this NPR story and interview about the case of Dennis Fritz, in Ada, Oklahoma. John Grisham’s nonfiction book “The Innocent Man” is an excellent read about the case.

Maybe this is the beginning of a trend. Hats off to DOJ, the Innocence Project, and NACDL.

This article by the Associated Press examined “decades of court records, archives, news reports and filings by the Innocence Project in order to compile the most comprehensive count to date of those exonerated after being convicted or charged based on bite mark evidence.” Typically, the evidence consisted of testimony by forensic dentists identifying marks on the bodies of victims (usually in cases of murder or sexual assault) as coming from the defendant’s teeth. According to the AP, since 2000, DNA identification has overturned one after another of these cases, throwing the entire “discipline” into question, and rendering it nearly obsolete.

Critics make two main claims against forensic odontology. First, there’s no scientific proof that a bite mark can be matched to any particular set of teeth. There is no data, no experimental evidence — nothing — on which to base the idea that forensic odontology can make reliable identifications. Second, human skin — almost always the site of the bite mark in question — does not reliably “record” bite marks, since the skin itself changes over time, even after death. Because the skin changes shape, consistency, color, and even size after the mark is made, this makes bite marks, and the method itself, inherently unstable.

Yet the dentists, who belong to the American Board of Forensic Odontology, insist that their methods of making identifications of the source of bite marks are reliable; it’s just that some forensic dentists are, well, not too good or biased. “The problem lies in the analyst or the bias,” said Dr. Frank Wright, a forensic dentist in Cincinnati. “So if the analyst is … not properly trained or introduces bias into their exam, sure, it’s going to be polluted, just like any other scientific investigation. It doesn’t mean bite mark evidence is bad.” It’s the familiar refrain: it’s just a few bad apples, not the whole barrel. But according to the AP:

Only about 100 forensic dentists are certified by the odontology board, and just a fraction are actively analyzing and comparing bite marks. Certification requires no proficiency tests. The board requires a dentist to have been the lead investigator and to have testified in one current bite mark case and to analyze six past cases on file — a system criticized by defense attorneys because it requires testimony before certification…The consequences for being wrong are almost nonexistent. Many lawsuits against forensic dentists employed by counties and medical examiner’s offices have been thrown out because as government officials, they’re largely immune from liability. Only one member of the American Board of Forensic Odontology has ever been suspended, none has ever been decertified, and some dentists still on the board have been involved in some of the most high-profile and egregious exonerations on record.

It’s worth noting that there’s nothing wrong with other uses of forensic dentistry, such as identifying human remains from teeth by matching them to existing dental records; that type of forensic work is generally rock solid and remains unchallenged by critics. But on identification of perpetrators through bite mark analysis, the question is different: when a forensic “science” has as dismal a record as forensic odontology does, and no scientific proof of its validity exists, can anything justify allowing the use of bite mark evidence to convict a person of a crime?

Michael Mermel, formerly a lawyer in the State’s Attorney’s office in Lake County, Illinois, became famous as a the prototypical prosecutor resisting science — even DNA. Readers will remember Mr. Mermel from my post “Resistance, Thy Name is Mermel” back in June of 2012. When DNA results in four of the office’s cases did not support the guilty verdicts, Mermel made clear that the DNA results meant nothing to him. Mermel eventually resigned from the office after telling The Chicago Tribune: “The taxpayers don’t pay us for intellectual curiosity. They pay us to get convictions.” Mermel’s boss, State’s Attorney Michael Waller, was replaced after the last election by Mike Nerheim, who made restoring the damaged integrity of the office one of his top priorities.

Now Nerheim has acted. He has appointed a special “case review board” to examine possible cases of wrongful convictions. In a video clip posted on YouTube, Nerheim explained that since “Lake County, Illinois, unfortunately, has been identified as having an issue with wrongful convictions,” he had appointed a panel of “independent” lawyers All of the six appointees “have no ties to these cases or to the office.” According to Nerheim, an independent “fresh set of eyes” was critical in order to “restore the public’s trust and confidence in the State’s Attorney’s Office.”

For making integrity of convictions a high priority for his office, Mr. Nerheim deserves credit and applause. The only thing that seems off is the make up of the case review board. According to The Chicago Tribune, four of the six members are former prosecutors; one of these four was a prosecutor in the Lake County office. Without in any way impugning the integrity of the board members, their backgrounds may cause members of the community to perceive the board as less than fair — that the deck is stacked deck in favor of the prosecution. I take no position on whether this is true or not; the concern is that if the function of this very worthy panel is to restore trust and integrity, some citizens of Lake County may be less than fully impressed with the independence of the group. One possible remedy would be to do what DA Craig Watkins has done with his Conviction Integrity Unit in Dallas: he has made the Texas Innocence Project an integral part of the Unit’s work.

Still, it’s important to congratulate Mr. Nerheim and everyone he serves in Lake County, Illinois. Now things can start to get better, even if they aren’t perfect.